Category Archives: Litigation

In a welcome decision to employers, the Third Circuit decided last week, for the first time, that an employer’s mere “honest belief” that an employee misused FMLA leave is sufficient to defeat a retaliation claim. As an employee claiming retaliation for using protected FMLA leave must prove that the very exercise of that right was a … Continue Reading

On April 28, 2016, the Supreme Court of the United Sates approved amending Federal Rule of Civil Procedure 6(d) to remove electronic service from the modes of service under Rule 5(b)(2) that allow an extra three (3) days to respond. Rule 6(a) specifies how a party must compute time as provided in the Federal Rules … Continue Reading

In a 4-3 decision, the California Supreme Court recently determined that the question of “who decides whether [an arbitration] agreement permits or prohibits classwide arbitration” is not subject to a “universal rule [that] allocates this decision in all cases to either arbitrators or the courts.” See Sandquist v. Lebo Automotive, Inc., Case No. S220812, 2016 … Continue Reading

In two long-awaited decisions, the Florida Supreme Court declared several provisions of the state’s workers’ compensation statutes unconstitutional, weakening legislative reforms approved in 1994 and 2003 intended to curb the system’s growing costs and higher premiums for employers and businesses. The rulings, in Castellanos v. Next Door Company and Westphal v. City of St. Petersburg … Continue Reading

Just when employers thought that the anti-retaliation provision of the Sarbanes-Oxley Act of 2002 (SOX), 15 U.S.C. § 1514A, already covered a broad range of protected conduct, the Department of Labor’s Administrative Review Board (ARB), the appellate body that reviews Administrative Law Judge (ALJ) decisions, potentially broadened the scope of conduct that is protected from … Continue Reading

In a 6-3 opinion, the United States Supreme Court held yesterday that a defendant’s unaccepted Rule 68 offer of judgment for complete relief does not moot a case. See Campbell-Ewald Co. v. Gomez, 577 U.S. ___ (2016). Justice Bader Ginsburg, writing for the 6-3 majority, explained that “[u]nder basic principles of contract law,” an offer … Continue Reading

Mesothelioma victims are not exempt from the exclusivity provisions and statutes of repose in Illinois’ Workers’ Compensation Act and Workers’ Occupational Diseases Act, according to a recently issued Illinois Supreme Court decision. Thus, common law claims against a former employer for asbestos related diseases are barred, even if the disease does not manifest until after … Continue Reading

Under Title VII, if the EEOC issues a cause finding, it must then try to remedy the alleged unlawful employment practice through “informal methods of conference, conciliation and persuasion.” 42 U. S. C. §2000e–5(b). If, and only if, it is unable to obtain a conciliation agreement that is “acceptable to the commission,” may the agency … Continue Reading

Written by James M. Nelson In the Mendiola v. CPS Security Solutions, Inc. decision last week, the California Supreme Court held that employees are entitled to pay not only for on-call time, but also for time spent sleeping during on-call shifts. The author of this GT Alert summarizes the case and notes that unaddressed items, … Continue Reading

By definition, metadata is data about data. For computer files, it includes file name, file type, date last opened, date last edited and more. In addition to that kind of file information, which most people can see, there are many more metadata fields that are hidden to typical users. When a file is created or … Continue Reading

Atlanta attorneys David Long-Daniels and Peter Hall recently co-authored an article for the American Bar Association’s Journal of Labor & Employment entitled “Risky Business: Litigating Retaliation Claims”. The article analyzes the recent increase in retaliation claims, the impact on employers and a forecast for future trends. To read the full article, please click here.… Continue Reading

Though it has long been a common practice for in-house counsel to respond to routine (and not so routine) demand letters, a recent New Jersey District Court decision should cause in-house counsel serious concern when doing so in the future. In Bourhill v. Sprint Nextel Corp., the Court allowed into evidence a portion of a letter written by an in-house attorney, prior to the action’s commencement, explaining why counsel’s position was factually meritless, but offering to entertain counsel’s invitation to resolve the matter so as to avoid litigation (the Court opinion is attached for your convenience). And this decision affects in-house counsel’s exchanges not only in the employment context, but also extends to all litigation.… Continue Reading

It is an age old litigation problem. The employee engaged in conduct the employer found sufficient for termination. The employee claims that was not the real reason and points to alleged discriminatory acts. How does one decide the issue? As importantly, from an HR perspective, how does the employer assess risk as no workplace is … Continue Reading

Relying on the federal Department of Labor rounding standard, a California appellate court ruled last week that even in California an employer is entitled to use the nearest-tenth rounding policy if it is fair and neutral on its face and it is used in such a manner that it will not result, over a period … Continue Reading

In a unanimous decision due to be published on May 15, the Connecticut Supreme Court has ruled that employers can be held liable for failing to protect employees from harassment based upon sexual orientation. In Patino v. Birken Manufacturing Company, a former employee of the jet engine component maker Birken Manufacturing, Co. accused the company of … Continue Reading

The OSHA Standard for Reporting and Recording Occupational Injuries and Illnesses, 29 C.F.R. § 1904, requires that certain employers track work related illnesses and injuries of their employees throughout the year, and post the summaries of those injuries from the previous year from February 1 to April 30. OSHA's deadline for employers to post their annual summary of injuries and illnesses is February 1, 2012. … Continue Reading

In the last several months, the National Labor Relations Board (“NLRB”) has attracted attention by issuing complaints against employers who disciplined or discharged employees for posting comments on Facebook or other social media criticizing the employer (see NLRB A ‘Twitter Over Employers’ Social Media Policies, and Social Media in the Workplace – The Social Media … Continue Reading

Employers providing employees with benefits subject to ERISA have a duty to provide accurate benefit information to employees. As with many areas of ERISA, the definition of “inaccurate” information and the consequences to employers for providing inaccurate information has been unclear. The United States Supreme Court addressed this gray area of ERISA in CIGNA Corp. … Continue Reading

Social media is everywhere, including, with increasing frequency, in lawsuits, particularly those involving employment-related claims. For example, employers sued by potential, current, and former employees are seeking social media information to learn if on-line postings by those employees on social media sites contradict statements or contentions made by them in their lawsuit. For their part, … Continue Reading

A federal court in the Western District of Michigan recently dismissed a lawsuit brought by the EEOC, but in doing so, ordered the EEOC to pay the employer some $750,000 in attorneys' fees for having to defend against a frivolous lawsuit.
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Recently, it seems, class action lawsuits against employers are getting bigger. Firms that in representing plaintiffs are targeting companies with class action litigations, in particular lawsuits alleging gender discrimination. These lawsuits allege gender discrimination against a few women combined with evidence designed to show a pattern of discrimination against women throughout the company to create a plaintiff … Continue Reading

A job discrimination suit recently brought under the New Jersey Law Against Discrimination (“NJLAD”) challenges an employer’s decision to terminate a transgender man from a “male-only” position. Urban Treatment Associates in Camden, New Jersey, hired El’Jai Devoureau as a part-time urine monitor, but terminated him after his supervisor discovered that his assigned sex at birth … Continue Reading

A new decision from the U.S. Court of Appeals for the 7th Circuit provides a stark reminder to employers of the ease with which a former employee can get a lawsuit before a jury. Berry v. Chicago Transit Auth., Case No. 07-2288 (7th Cir. Aug. 23, 2010). Cynthia Berry alleged that a coworker sexually harassed … Continue Reading

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Greenberg Traurig, LLP (GTLaw) has more than 2,000 attorneys in 38 offices in the United States, Latin America, Europe, Asia and the Middle East and is celebrating its 50th anniversary. A single entity worldwide, GTLaw has been recognized for its philanthropic giving, was named the second largest firm in the U.S. by Law360 in 2016, and among the Top 20 on the 2016 Am Law Global 100. Web: www.gtlaw.com Twitter: @GT_Law.